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May board chair review personnel records?

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May board chair review personnel records?

I am Chairman of the Board of Deacons at a 200-member church that is a separately incorporated nonprofit. I have requested to see the personnel files of two staff members based on an up-coming annual review. I have been told no by the church secretary because the pastor told her not to let people see them. Where can I find the law that shows I have a right to view the records?

Assuming that your Board of Deacons is the equivalent to a board of directors of a secular corporation, the general rule is that you have a right to review the books and records of the corporation in order to perform your fiduciary duty to the corporation.

If you are lucky, your state nonprofit corporation law will contain a provision, like Section 5512 of the Pennsylvania NPCL, that provides that a director has a right to inspect and copy corporate books and records “to the extent reasonably related to the performance of the duties of the director” so long as the director is not likely to use the information in a manner that would violate the duty of the director to the corporation. This provision has been relied upon by directors of Penn State University to obtain some very sensitive information used to prepare the Freeh Report on the Jerry Sandusky child abuse case. (See Nonprofit Issues®, 9/15.)

But in many states, the right has grown up in common law court decisions rather than from statutory provisions. You may need to search your state decisions for guidance, or if none, cite the general rules of other states.

There are at least two other significant issues in your case that have to be considered, however. First, employees have a certain right to the privacy of their employment records. I would not think it prevails over the director’s right of oversight in most cases, depending on the purpose of the request. Second, if your inquiry is based on the employees’ membership in the church, adherence to doctrinal views, or other religious matters, if you actually file suit, a court is likely to decline jurisdiction and say that it cannot involve itself in ecclesiastical matters.

You should obviously discuss your request with the pastor and other deacons before even thinking about going to court. But you can start from the premise that as a director you have the right to review the books and records in order to fulfill your fiduciary duty.

Comments

From the term "board of deacons" it sounds as if this may be a Baptist church. I have looked at the Charter and Bylaws of churches of different denominations and common Baptist polity vests the senior pastor with relatively higher authority/autonomy in comparison to other denominations. I would review the bylaws to discern what provisions exist for conversations of these sorts.

While I understand they have the right to review these records, an open dialogue is absolutely essential. Is there a specific concern? While legally this may be fine, operationally it seems like micromanaging,and it doesn't seem inappropriate to question why they wish to review them. The confidentiality factor worries me. For example, what if a review references an illness that impacted performance that was not widely known. Or, thinking of our current climate, something that implies their emergency contact is a same-sex partner. If there is a performance issue, what assurances do employees have that only pertinent information will be used in a subsequent review or decisionmaking? There is perhaps a lesson here too in being informed about what should and should not be kept in a personnel file or included in performance reviews.

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